Pinterest is a social site for image sharing around themes that launched in closed beta in March 2010. As the site proceeded through an invite system and finally registration requests, it gained a considerable following and was one of Time's "50 Best Websites of 2011." In January 2012, it drove more referral traffic to retailers than YouTube, Google+, and LinkedIn combined and became the fastest site to ever break 10 million unique visitors. As its popularity increases, so have concerns about whether its users aren't just sharing their favorite things, but engaging one another in the web's largest copyright infringement platform.

The Pinterest Terms of Use say that you agree you own the content you share on Pinterest, have the ability to grant them the right to share it, and accept any legal risk of using the site, holding Cold Brew Labs (Pinterest's owners) harmless. But Pinterest's etiquette rules tell you to be sure to "link back to the original post" and discourages using Pinterest for "self-promotion." That puts some discontinuity between its legal terms and the way it advocates that you use the site, apparently leaving it up to casual users to undertake the legal analysis (and risk!) of the relationship between the pinner and the pinned content.

Photographer/lawyer Kirsten Kowalski is among those who have blogged recently about Pinterest and copyright, and she feels pretty strongly that it’s infringement. She concludes that the only option is to either only pin your own work or get off Pinterest altogether. (She also ends her post by making her own feelings on content sharing clear. I'd quote it to you, but the sentence in question says not to.)

But could it be instead that pinning other people's images—the way Pinterest intends and the way most people use the site—is fair use? Courts have held that search engine thumbnails are sufficiently transformative to not be infringing (see Perfect 10 v. Google and the earlier Kelly v. Arriba Soft Corporation). In that context, are Pinterest boards likewise transformative? Pinterest is probably counting on that—being considered like a search engine were this to ever come to a courtroom, since your pins link back to the original site. Pinterest may also have concluded that its users' creation of "boards" is use of content in ways that is akin to collages and mashups, which many consider transformative and therefore lawful.

As to monetary benefits, there's no personal profit resulting from, say, pinning a picture of a pair of shoes you like, at least for an individual, non-corporate user. (In fact, there's a better chance that you've pinned it to a board full of shoes in order to choose a pair to purchase.) Pinterest itself is not yet profitable either. What income it does have comes from replacing affiliate tracking codes in links so that affiliate payments go to Pinterest instead of the pinner.

So there are understandably different opinions on the issue of the legality. However, beyond questions of copyright, underlying all of this is a huge problem to which the only solution is a mass recognition of the cultural shift we need to embrace in order to move forward. Simply put, the Internet is built on a culture of sharing. Creatives of all types are often surprised to find their photos shared or their designs copied by others online. Ironically, in the title to her post about deleting them, Kowalski acknowledges that for her that these are "inspiration" boards. All art is ultimately derivative, whether the artist wants to admit it or not. We build on those who came before us. That's not a bad thing—it’s just art.

Photographer Trey Ratcliff of the Stuck in Customs blog embraces the open approach to the web. He writes:

When it comes to sharing your photographs online, you can go in two directions. You can put small images online, watermark them and then spend some or all of the week chasing down people that have used them inappropriately.

Or, you can be like me.

Offer up all your creations in maximum and beautiful resolution to the will of the web. The web, and the universe, has a certain flow to it. You can become one with that flow and enjoy the ride. You can let the opportunity of what-can-be motivate you rather than the more poisonous fear-of-loss.

This is the spirit of Pinterest and of the Internet as a whole. If nobody shared anything online--no images, no content--what would it look like? Certainly not the rich resource we recognize as the Internet.

Don't worry that someone is recreating the bag or jewelry or whatever it is you make. Sell a better quality bag. Keep innovating and make a more interesting necklace. Fashion designers have managed to survive and thrive with only so many ways to put sleeves on a body—you can do the same with whatever your art is, too. Still don’t believe Pinterest can help? Ratcliff notes that Pinterest, despite being barely a year old, accounts for 15% of the traffic to his photography site. Even if most of those eyeballs keep clicking by, some of them are going to turn into revenue.

Flickr, where many photographers gather and store their images, has blocked pinning from private photos or those that have opted out of sharing. There’s a WordPress option that lets you block pinning from your blog. But if you’re truly dedicated to being a barrier to sharing, you’re going to have to stop using the Internet. Anything you put online is going to be seen—and that means it’s going to be inspiration for someone else to create. Further, you can’t help but be inspired and create your own work through the lens of your experience. So if you’re not willing to share, what it really means is that you’re online, taking inspiration from others, but you’re not willing to give back to the community.

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6 Comments

I'm so glad to see this discussion percolating up through Pinterest members. I opened a Flickr account for the specific purpose of Pinning my own photos to avoid copyright infringement. I also have a stack of printed emails from companies who have said yes to my request to Pin from their websites. Needless to say, I'd rather just click on the Pin-it button when I see something I like, but until this issue is resolved I'll abide by the restrictions. Pinterest needs to drop the portion in the Terms of Use that gives them irrevocable, royalty-free, etc... rights. It's just unreasonable given that they know we don't own those rights. If we did why would attribution be mentioned.

I really like the Trey Ratcliff quote in which he recognizes the benefit of sharing over protection, and responding to the motivation of "what-can-be" rather than reacting to "fear-of-loss". This is what makes the pay-it-forward approach so liberating and rewarding.

I don't disagree with the idea that sharing is good, but I object to Pinterest's attempt to have it both ways. If they want people to share they shouldn't adopt a policy that explicitly puts the risk of doing so solely on the user. Pinterest is a neat site but I don't see why I should place myself that much at risk on their behalf -- especially since the risk seems to come mostly from their terms of service, no less.

"By making available any Member Content through the Site, Application or Services, you hereby grant to Cold Brew Labs a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content only on, through or by means of the Site, Application or Services."

I don't think the problem with Pinterest is the arguable "fair use" protection of use of the site, or the site's claims to license to anything you pin. I think the problem with Pinterest is the section of the TOU in which they transfer so much legal liability to the user that any legal claims against Pinterest become the user's responsibility to defend. Gee, thanks Pinterest -- NOT.

"But if you’re truly dedicated to being a barrier to sharing, you’re going to have to stop using the Internet. Anything you put online is going to be seen—and that means it’s going to be inspiration for someone else to create. Further, you can’t help but be inspired and create your own work through the lens of your experience. So if you’re not willing to share, what it really means is that you’re online, taking inspiration from others, but you’re not willing to give back to the community."

I could not agree more! I've read so many posts regarding this issue all with the same, "we are being wronged" undertone so it's refreshing to hear someone view it from another angle.

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Ruth Suehle leads community marketing for Red Hat's Open Source and Standards team, including the Fedora Project and is the moderator of the Life channel here on opensource.com. She's co-author of Raspberry Pi Hacks

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